The Federal Court of Canada (the “Federal Court“) has the jurisdiction to review immigration decisions, including those of Immigration, Refugees and Citizenship Canada (“IRCC“) and the Canada Border Services Agency (“CBSA“). The Federal Court will not order a specific result. Rather, the Federal Court will order that the application be sent back for re-determination by a different officer. Many people often wonder how that process works. Jurisprudence In Canada (Commissioner of Competition) v. Superior Propane Inc. (C.A.), 2003 FCA 53, the Federal Court of Appeal stated: The principle of stare decisis is, of course, well known to lawyers and judges. Lower courts must follow the law as interpreted by a higher co-ordinate court. They cannot refuse to follow it: Canada Temperance Act (The), Re, 1939 CanLII 58 (ON CA), [1939] O.R. 570 (C.A.), at page 581, affd 1946 CanLII 351 (UK JCPC), [1946] 2 D.L.R. 1 (P.C.); Woods v. The King, 1951 CanLII 36 (SCC), [1951] S.C.R. 504, at page 515. This principle applies equally to tribunals having to follow the directions of a higher court as in this case. On redetermination, the duty of a tribunal is to follow the directions of the reviewing court. In Canada (Citizenship and … Read More
Inadmissibility for Subversion
Section 34 of the Immigration and Refugee Protection Act states: 34 (1) A permanent resident or a foreign national is inadmissible on security grounds for (a) engaging in an act of espionage that is against Canada or that is contrary to Canada’s interests; (b) engaging in or instigating the subversion by force of any government; (b.1) engaging in an act of subversion against a democratic government, institution or process as they are understood in Canada; (c) engaging in terrorism; (d) being a danger to the security of Canada; (e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or (f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b), (b.1) or (c). The Test for Subversion Canadian immigration legislation does not define subversion. Several Federal Court of Canada decisions have found that it does not require violence, including Oremade v Canada (Minister of Citizenship and Immigration), 2005 FC 1077, where Justice Phelan stated: I agree with the IAD’s conclusion that the term “by force” is not simply the equivalent of “by violence”. “By force” includes coercion or compulsion by violent means, coercion or compulsion … Read More
The Start-Up Business Class
On April 11, 2018, regulations for the Start-Up Business Class (the “Start-Up Business Class”) came into effect. The regulations slightly modify the program that has been in effect since April 1, 2013. Both applicants as well as designated entities should be aware of the changes.
Arguing Incompetence of Counsel in an Appeal
Many lawyers when they meet with clients often review rejected applications and/or appeals where it is obvious that the individual’s previous representative was incompetent. The examples of incompetence range from missed deadlines to ignorance of the law. Some specific examples include: former counsel being told by an Immigration Appeal Division member to “sit down” because they were incompetent; an immigration consultant not knowing the difference between a “conviction” and a “dismissal”; an immigration consultant stating that the “prevailing wage = the wage paid to Canadians at the employer’s company”; and a lawyer filing late because “deadlines are policy, not statute.” While the previous representative’s incompetence may serve as a ground for relief in a judicial review, cases based on incompetence and/or negligence of previous counsel are exceptionally difficult. The Federal Court’s March 7, 2014, Procedural Protocol on arguing incompetence of counsel only make these cases more challenging. The Law on Incompetence of Counsel As the Supreme Court of Canada stated in R v. GDB for incompetence/negligence of previous counsel/representative to count as a ground for judicial review, it must be established that (1) previous counsel’s acts or omissions constituted incompetence and (2) that a miscarriage of justice resulted from the incompetence. The Federal … Read More
Borderlines Podcast #142 – Options for International Students Narrowing in 2025, Asylum Claims Increasing, with Lisa Brunner
Lisa Brunner is a Postdoctoral Research Fellow at the University of British Columbia (UBC) Centre for Migration Studies. We discuss the current situation international students are facing, the gaslighting over whether they were told that being a student would likely lead them to permanent residency, how post-graduate work permit holders in British Columbia are taking leaves of absence to study French, international students claiming asylum, and more.
Understanding Judicial Review
When a visa application has been refused and an applicant is convinced that the decision is unreasonable then it may be advisable to file an Application for Leave to Commence Judicial Review with the Federal Court of Canada (the “Federal Court” or the “Court”). The Federal Court has the jurisdiction to review the decisions of visa officers. The Court will determine whether an immigration officer committed any reviewable errors that should result in the decision being set aside. Reviewable errors include errors of fact, law, or breaches of procedural fairness. If an applicant succeeds in Federal Court, then the Court will order that the immigration officer’s decision be set aside, and typically that the application be reconsidered by a different officer. Usually, a successful judicial review will ultimately result in a positive decision from the second visa officer. However, this is not always the case. Furthermore, as the Federal Court of Appeal determined in Lee v. Canada (Minister of Citizenship and Immigration) 2004 FCA 143, there is no obligation on the second immigration officer to specifically refer to the order of the Court in the judicial review and provide reasons as to how and why the second decision differs from the … Read More
Borderlines Podcsat #141 – A New Problem with Visitor Records and Leaving Canada
On this episode, Steve and Deanna discuss the effect of cross-border travel on the validity of a visitor record. The question is: do they become invalidated by travel outside Canada? The topic was raised by Tamara Mosher Kuczer in episode 140, in which she reported an uptick in visitor record extension refusals due to prior invalidation of the original visitor record. After that episode several listeners asked us to expand on the topic. The scenario, and what is occuring, is this. A family enters Canada, with the parents receiving three-year work permits and the children granted three-year visitor records. After one year, the family travels abroad for a month. Upon their return, the Canada Border Services Agency stamps the children’s passports but does not issue new visitor records or indicate an extended stay. Before the parents’ work permits and the children’s visitor records expire, the family applies to extend their status. IRCC approves the parents’ work permit extensions but informs the family that the children’s visitor records were automatically canceled when they left Canada. IRCC explains that upon re-entry, the children were only granted a six-month stay because CBSA did not issue new visitor records or mark an extended … Read More
Visiting Canada? How to fill out a successful temporary visa application
In recent years, more than one million people annually have been applying for visitor visas to visit Canada. Several hundred thousand more apply for work permits or study permits each year. Immigration, Refugees and Citizenship Canada will refuse around 20 per cent of these applications, sending a generic refusal letter, providing vague reasons off a checklist. What most refused applicants don’t realize is that behind these decisions are additional, often very detailed reasons that aren’t provided in the refusal letter. These internal reasons can range from a few short sentences, to sometimes even more than a page of reasoning that IRCC does not share with the applicant. It is important for refused applicants to apply for and obtain the full internal reasons for IRCC’s refusal of their application before they try to reapply. (Learn how at canadianimmigrant.ca/immigrate “Application refused? What CIC states in refusal letters is not the whole story.”) It is also important to understand the numerous factors that visa officers consider when assessing temporary residency applications to determine whether someone will leave Canada by the end of their authorized stay. By knowing what these factors are, applicants can maximize the likelihood of successfully assembling a strong visa application. … Read More
Open Spousal Work Permits
In a previous blog post I wrote about how Immigration, Refugees and Citizenship Canada (“IRCC”) was increasingly focusing on genuineness in open spousal work permits. On September 27, 2021 IRCC updated its webpage to reform the open spousal work permit program.
Borderlines Podcast #140 – 2024 Year in Review and Predictions for 2025
Tamara Mosher Kuczer is the Founder & Principal Lawyer of Lighthouse Immigration Law Professional Corporation. She can be found on Twitter @ttrrmk.